ACCEPTED
01-15-00303-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS 11/30/2015 2:39:01 PM CHRISTOPHER PRINE
CLERK
NO. 01-15-00303-CR
IN THE FIRST COURT OF APPEALS FILED IN 1st COURT OF APPEALS
HOUSTON, TEXAS
HOUSTON, TEXAS 11/30/2015 2:39:01 PM CHRISTOPHER A. PRINE
Clerk
GARY LAVERN WYMORE AKA CALVIN MCCOLLUM, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
BRIEF FOR THE STATE OF TEXAS
CAUSE NUMBER 14CR1334
IN THE 405th JUDICIAL DISTRICT COURT OF GALVESTON COUNTY, TEXAS
ATTORNEYS FOR THE STATE OF TEXAS
REBECCA KLAREN ASSISTANT CRIMINAL DISTRICT ATTORNEY STATE BAR NO. 24046225
JACK ROADY CRIMINAL DISTRICT ATTORNEY
600 59TH STREET, SUITE 1001 GALVESTON TX 77551 (409) 770-6004, FAX (409) 621-7952 rebecca.klaren@co.galveston.tx.us
ORAL ARGUMENT WAIVED
IDENTITY OF PARTIES AND COUNSEL
Presiding Judge Honorable Dibrell
Appellant Gary Lavern Wymore aka Calvin McCollum
Appellee The State of Texas
Attorney for Appellant Calvin Parks
(Trial Only) Pearland, Texas
Attorney for Appellant Joseph Kyle Verret
(Appeal Only) Galveston, Texas
Attorney for State Christopher Henderson & Matthew Shawhan
(Trial Only) Galveston, Texas
Attorney for State Rebecca Klaren
(Appeal Only) Galveston, Texas
ii
TABLE OF CONTENTS
SECTION PAGE
Identity of Parties and Counsel ii
Table of Contents iii
Index of Authorities iv
Summary of the Argument 2
Statement of Facts 2
Sole Issue 9 Viewing the evidence in the light most favorable to the jury’s verdict, how’s the evidence insufficient to prove Wymore/McCollum was intoxicated when it showed he drove erratically, slurred his speech, had glassy bloodshot eyes, smelled of alcohol, told an incoherent story, had a wet spot on the front of his pants, swayed, had an unsteady gait, failed the only SFST he performed, refused to give a breath sample, and lied about his name?
Argument and Authorities 9
I. Sufficiency Standard Of Review 9
II. Driving While Intoxicated 10
III. The Evidence Overwhelming Proves Wymore/McCollum Was Intoxicated 10
IV. Conclusion: The Evidence Was Legally Sufficient 13
Conclusion and Prayer 14
Certificate of Service 15
Certificate of Compliance 15
iii
INDEX OF AUTHORITIES
CASES
Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979) .......................................12
Barraza v. State, 733 S.W.2d 379, 381 (Tex. App.---Corpus Christi 1987), aff’d, 790 S.W.2d 654 (Tex. Crim. App. 1990) ........................................................................12
Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008) .....................................12
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). ....................................10
Cotton v. State, 686 S.W.2d 140, 142-43 & 142 n. 3 (Tex. Crim. App. 1985) ... 11, 12, 13
Felder v. State, 848 S.W.2d 85, 98 (Tex. Crim. App. 1992) ...........................................12
Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). ................................... 9, 10
Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.---Houston [1st Dist.] 2000, pet. ref’d).......................................................................................................................12
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) ...........................................10
Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.---Houston [1st Dist.] 2011, pet. ref’d) .10
Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010) .......................................11
STATUTES
TEX. PENAL CODE ANN. § 49.01(2). ..........................................................................10
TEX. PENAL CODE ANN. § 49.04(a). ..........................................................................10
TEX. TRANSP. CODE §724.012 (b)(3). .........................................................................12
iv
NO. 01-15-00303-CR
IN THE
COURT OF APPEALS
FOR THE
FIRST DISTRICT OF TEXAS
HOUSTON, TEXAS
GARY LAVERN WYMORE AKA CALVIN MCCOLLUM, Appellant V.
THE STATE OF TEXAS, Appellee
Appealed from the 405th Judicial District Court of Galveston County, Texas Cause No. 14CR1334
BRIEF FOR THE STATE OF TEXAS
TO THE HONORABLE COURT OF APPEALS:
Now comes Jack Roady, Criminal District Attorney for Galveston County, Texas,
and files this brief for the State of Texas.
The one-volume Clerk’s Record is referred to in the State’s Brief as “C.R. page”. The Reporter’s Record is multiple volumes and is referred to as “R.R. volume number: page”.
SUMMARY OF THE ARGUMENT
In one issue, Gary Lavern Wymore also known as Calvin McCollum, argues the
evidence is insufficient to prove he was intoxicated when he was arrested for driving
while intoxicated. Viewing the evidence in the light most favorable to the jury’s verdict,
the evidence proves Wymore/McCollum changed lanes without signaling, abruptly
changed lanes again, lied about his name, slurred his speech, told an incoherent story,
was unsteady on his feet, swayed as he walked, smelled of alcohol, had bloodshot glassy
eyes, had a wet spot on the front of his pants in the groin area, failed the walk and turn
test, and refused a breath test. His van also smelled strongly of alcohol. The evidence
was more than sufficient to prove Wymore/McCollum was intoxicated.
STATEMENT OF FACTS
Sergeant White and Officer Santiago were dispatched to find an erratic reckless
driver.1 The caller described the erratically driving vehicle as a grey van with a tire
strapped on the top.2
Within 3 minutes of the dispatch, the officers saw the grey van.3 Officer Santiago
testified the driver swerved a little within his lane.4 The driver was going faster than the
1 R.R.II: 141, 199. 2 R.R.II: 199. 3 R.R.II: 199-200. 4 R.R.II: 142.
3
cars around him on a wet road.5 As soon as the officers got behind the van, the driver
changed lanes without signaling.6 Then, abruptly, turned on his signal and changed lanes
again.7 Sergeant White testified the driver’s maneuvers appeared to be an evasive move
away from being in front of the patrol car.8 The officers turned on their overhead lights.9
The driver pulled over.10
As soon as the driver pulled onto the shoulder of the road, he got out of his
van.11 He wasn’t told to get out by the officers.12 The driver stood close to the traffic
lane.13 He put his hands toward his waist.14 The officers testified it’s concerning when a
driver reaches towards his waist because the driver could be reaching for a weapon.15
Because of the driver’s behavior, the officers asked him to move away from the traffic,
towards the front of the patrol car.16 The officers also told the driver to keep his hands
in front of him.17
As the driver walked towards the back of his van and towards the front of the
5 R.R.II: 166. 6 R.R.II: 142, 200. 7 R.R.II: 142, 200-01. 8 R.R.II: 200-01. 9 R.R.II: 142-43. 10 R.R.II: 143-44. 11 R.R.II: 144. 12 R.R.II: 144. 13 R.R.II: 145, 202. 14 R.R.II: 201-02. 15 R.R.II: 145, 201-02. 16 R.R.II: 202. 17 R.R.II: 202.
4
patrol car, the officers noticed he was unsteady on his feet.18 They noted he took long
strides and swayed.19
Once the driver got to the front of the patrol car, the officers asked the driver to
identify himself.20 The driver gave the officers an expired Kentucky driver’s license with
the name of Gary Wymore.21 Officer Santiago ran the name Gary Wymore through the
police department’s communications.22 It returned a Texas driver’s license.23 The driver
did not tell the officers his real name is Calvin McCollum. This wasn’t discovered until
sometime after Wymore/McCollum was arrested.24
The officers smelt a strong odor of alcohol emitting from Wymore/McCollum’s
breath and body.25 Officer Santiago testified, that based on his experience, the odor
smelled like beer.26 The officers testified Wymore/McCollum’s speech was slurred.27 He
had a thick tongue.28 His eyes were glassy and bloodshot.29 The officers also saw that
Wymore/McCollum had a wet spot on the front of his pants that spread from his groin
to his thighs.30
18 R.R.II: 146, 203. 19 R.R.II: 146, 203. 20 R.R.II: 144, 202. 21 R.R.II: 144, 202. 22 R.R.II: 144. 23 R.R.II: 144. 24 R.R.II: 145. 25 R.R.II: 146, 203, 205. 26 R.R.II: 146. 27 R.R.II: 146. 28 R.R.II: 146. 29 R.R.II: 146. 30 R.R.II: 189, 194.
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The officers asked Wymore/McCollum where he was going.31
Wymore/McCollum said he was going to Freeport because a friend had a stroke and
needed help.32 The officers testified Wymore/McCollum’s story was incoherent and
odd.33 The officers testified Wymore/McCollum was driving in the opposite direction
and wasn’t heading towards Freeport.34 The officers asked him if EMS was called for his
friend.35 Wymore/McCollum said no.36 The officers testified that Wymore/McCollum
repeated himself.37 Sergeant White testified he had to ask Wymore/McCollum several
questions to get any detail about his story.38 Wymore/McCollum didn’t give the officers
the name of his friend or the friend’s address.39 The officers testified they couldn’t
corroborate Wymore/McCollum’s story.40
Sergeant White testified he asked Wymore/McCollum to do several standard field
sobriety tests (SFSTs).41 Sergeant White asked Wymore/McCollum if he had any
medical issues.42 Wymore/McCollum said he didn’t.43
Sergeant White testified he didn’t do the horizontal gaze nystagmus because it
31 R.R.II: 203. 32 R.R.II: 203. 33 R.R.II: 150, 203-04. 34 R.R.II: 150, 203. 35 R.R.II: 150, 203-04. 36 R.R.II: 150, 203-04. 37 R.R.II: 205. 38 R.R.II: 205. 39 R.R.II: 151. 40 R.R.II: 204. 41 R.R.II: 210-11, 213-14. 42 R.R.II: 207. 43 R.R.II: 207.
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was misting.44 He didn’t want a false reading in Wymore/McCollum’s eyes.45
Sergeant White explained and showed Wymore/McCollum how to do the walk
and turn test.46 Wymore/McCollum said he understood.47 Wymore/McCollum failed
the test.48 He stepped off the imaginary line.49 He used his arms for balance.50 And he
didn’t step heel to toe.51 Based on Wymore/McCollum’s performance on the test,
Sergeant White testified Wymore/McCollum was intoxicated.52
Sergeant White explained the one leg stand test to Wymore/McCollum.53 He said
he understood and attempted the test.54 Wymore/McCollum stopped the test and said
he had a bad back.55 Despite being directly asked before any of the tests if he had a
medical issue, this was the first time Wymore/McCollum claimed to have a medical
problem.56
Even though Wymore/McCollum failed the SFSTs and claimed he hadn’t drank
any alcohol, Sergeant White offered to let him blow into a portable breath test (PBT).57
The sergeant testified the PBT is a tool that shows whether a person has consumed
44 R.R.II: 208. 45 R.R.II: 208. 46 R.R.II: 212. 47 R.R.II: 212. 48 R.R.II: 212. 49 R.R.II: 213. 50 R.R.II: 213. 51 R.R.II: 213. 52 R.R.II: 213. 53 R.R.II: 213-14. 54 R.R.II: 214. 55 R.R.II: 214. 56 R.R.II: 214-15. 57 R.R.II: 215.
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alcohol.58 Wymore/McCollum agreed to do the test.59 The sergeant held the PBT while
Wymore/McCollum blew.60 Sergeant White testified he could feel Wymore/McCollum
not blow hard enough.61 Wymore/McCollum also didn’t close his lips around the tube.62
Sergeant White testified he concluded Wymore/McCollum was intoxicated based
on the 4 walk and turn clues, that he couldn’t complete the one leg stand, that his story
didn’t add up, that he repeated himself, that his speech was slurred, that he spoke with a
thick tongue, he swayed while he walked, and smelled of alcohol.63 The officers arrested
Wymore/McCollum for driving while intoxicated.64
The officers explained that when a driver is arrested, his vehicle is inventoried.65
Officer Santiago testified when he attempted to inventory Wymore/McCollum’s van, he
found a small puppy sitting in the passenger seat.66 He also found the van was filthy.67
The officer testified he found a cup sitting in the front center console that smelled like
beer.68 He said he smelled an extremely strong odor of alcohol emitting from between
the center console and the driver’s seat, as if beer was just poured out into the van.69 He
58 R.R.II: 216. 59 R.R.II: 216. 60 R.R.II: 216-17. 61 R.R.II: 216-17. 62 R.R.II: 217. 63 R.R.II: 217-18. 64 R.R.II: 217-18. 65 R.R.II: 151. 66 R.R.II: 190. 67 R.R.II: 152. 68 R.R.II: 152. 69 R.R.II: 152.
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also found several old cans of beer.70
The officers testified that after they arrested Wymore/McCollum, they brought
him to the police department and asked him to give a breath sample on the intoxilyzer
machine.71 He refused.72
The in-car video of the stop and arrest was admitted into evidence.73 The video of
Wymore/McCollum refusing to give a breath sample in the intoxlizyer room was also
admitted.74
At no point did Wymore/McCollum tell the officers his name wasn’t Wymore
and that his true name was McCollum. Sergeant White testified people lie about their
names to hide their criminal histories.75 The sergeant testified that at the time of
Wymore/McCollum’s arrest, if the driver had 2 DWI convictions, the police would
conduct a mandatory blood draw.76
At trial, Wymore/McCollum stipulated that he was twice convicted of DWI.77
The jury convicted him of felony DWI 3rd or more.78
Wymore/McCollum elected to have the Trial Court assess his punishment.
70 R.R.II: 190. 71 R.R.II: 155-56, 218-19. 72 R.R.II: 156, 218-19. 73 R.R.II: 153; State Exhibit 1. 74 R.R.II: 184; Defense Exhibit 1. 75 R.R.II: 207. 76 R.R.II: 206-07. 77 R.R.II: 256-57; State Exhibit 3. 78 R.R.III: 28.
9
During the punishment hearing, Wymore/McCollum pled true to both enhancements.79
The enhancements were for a 3rd DWI and for felony tampering with evidence.80 The
Trial Court sentenced Wymore/McCollum to 30 years confinement.81
This appeal followed.
SOLE ISSUE
Viewing the evidence in the light most favorable to the jury’s verdict, how’s the evidence insufficient to prove Wymore/McCollum was intoxicated when it showed he drove erratically, slurred his speech, had glassy bloodshot eyes, smelled of alcohol, told an incoherent story, had a wet spot on the front of his pants, swayed, had an unsteady gait, failed the only SFST he performed, refused to give a breath sample, and lied about his name?
ARGUMENT AND AUTHORITIES
I. Sufficiency Standard Of Review
Under a legal sufficiency standard of review, appellate courts review all the
evidence in the light most favorable to the verdict and determines, based on that
evidence and any reasonable inferences therefrom, whether any rational fact finder
could have found the elements of the offense beyond a reasonable doubt.82 This
standard gives full play to the responsibility of the trier of fact fairly to resolve 79 R.R.III: 32-33. 80 R.R.III: 32-33. 81 R.R.III: 37. 82 Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011).
10
conflicts in the testimony, weigh the evidence, and draw reasonable inferences from
basic facts to ultimate facts.83 Appellate courts presume that conflicting inferences
were resolved in favor of the conviction and defer to that resolution.84 Circumstantial
evidence is as probative as direct evidence in establishing guilt.85 Each fact need not
point directly and independently to guilt, as long as the cumulative force of all
incriminating circumstances is sufficient to support the conviction.86
II. Driving While Intoxicated
A person commits DWI if he “is intoxicated while operating a motor vehicle in a
public place.”87
“Intoxicated” means “not having the normal use of mental or physical faculties
by reason of the introduction of alcohol ... into the body.”88
III. The Evidence Overwhelming Proves Wymore/McCollum
Was Intoxicated
Wymore/McCollum only challenges the sufficiency of the evidence that
establishes he was intoxicated. Consequently the State’s argument is limited to that
element.
83 Id. 84 Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). 85 Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.---Houston [1st Dist.] 2011, pet. ref’d). 86 Hooper, 214 S.W.3d at 13. 87 TEX. PENAL CODE ANN. § 49.04(a). 88 TEX. PENAL CODE ANN. § 49.01(2).
11
Viewing the evidence in the light most favorable to the jury’s verdict, the jury
could’ve found beyond a reasonable doubt that Wymore/McCollum was intoxicated
when stopped by the officers based on the following:
Wymore/McCollum was driving erratically. The officers saw Wymore/McCollum
change lanes without signaling, then abruptly change lanes again, and breaking
suddenly.
Wymore/McCollum got out of his van without being asked, he was unsteady on
his feet, he swayed, and used a large gait.89
Wymore/McCollum had a wet spot on his pants at his groin and thighs.
Wymore/McCollum’s story wasn’t coherent and he repeated himself. He was
driving in the opposite direction he claimed to be headed.
Wymore/McCollum’s speech was slurred.90 He spoke with a thick tongue. His
eyes were glassy and bloodshot.91
Wymore/McCollum’s breath and body smelled strongly of alcohol, his van
smelled strongly of beer recently poured from a cup, and there was cup in the
center console that smelled of alcohol.92
89 See Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010) (recognizing evidence raising inference of intoxication includes erratic driving, post-driving behavior such as stumbling, swaying, slurring or mumbling words, and bloodshot eyes). 90 See id. 91 See Cotton v. State, 686 S.W.2d 140, 142-43 & 142 n. 3 (Tex. Crim. App. 1985) (identifying characteristics that may constitute evidence of intoxication to include slurred speech, bloodshot eyes, unsteady balance, and staggering gait). 92 See id. at 142 n. 3 (including the odor of alcohol on the person or his breath as characteristic that
12
Wymore/McCollum failed the walk and turn standard field sobriety test. He
refused to do the one leg stand test.93
Sergeant White testified that based on the above, he believed Wymore/
McCollum was intoxicated.94
Wymore/McCollum refused to submit to a breath test.95
Wymore/McCollum gave the officers a false name. This indicates a
consciousness of guilt.96 And it prevented the officers from obtaining
Wymore/McCollum’s criminal history. Had they had his criminal history, they
would’ve seen Wymore/McCollum had more than two DWI convictions. The
officers would’ve been obligated to obtain a mandatory blood draw from
Wymore/McCollum.97
may constitute evidence of intoxication). 93 See Barraza v. State, 733 S.W.2d 379, 381 (Tex. App.---Corpus Christi 1987), aff’d, 790 S.W.2d 654 (Tex. Crim. App. 1990) (holding there is no significant difference between refusal to take fieldsobriety test and refusal to perform breath test for evidentiary purposes). 94 See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979) (reasoning that an officer’s testimony that a person was intoxicated provided sufficient evidence to establish the element of intoxication); see also Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.---Houston [1st Dist.] 2000, pet. ref’d) (stating that the testimony of a police officer that an individual is intoxicated is probative evidence of intoxication). 95 See Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008) (recognizing defendant’s refusal to submit to breath test is relevant to show consciousness of guilt). 96 See Felder v. State, 848 S.W.2d 85, 98 (Tex. Crim. App. 1992) (giving false identification to a police officer indicates a consciousness of guilt). 97 See TEX. TRANSP. CODE §724.012 (b)(3).
13
IV. Conclusion: The Evidence Was Legally Sufficient
Evidence of intoxication may be proven by a combination of individual
symptoms of intoxication that when taken individually do not necessarily prove
intoxication.98 Here, the officers were confronted with overwhelming symptoms of
Wymore/McCollum’s intoxication---his driving behavior, slurred speech, glassy
bloodshot eyes, smell of alcohol, incoherent story, failed SFST, breath test refusal, and
false name. Viewing the evidence in the light most favorable to the jury’s verdict, the
evidence was more than sufficient.
98 See Cotton, 686 S.W.2d at 142 n. 3.
14
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that the judgment
of the Trial Court be affirmed in all respects.
Respectfully submitted,
JACK ROADY CRIMINAL DISTRICT ATTORNEY GALVESTON COUNTY, TEXAS
/s/ Rebecca Klaren
REBECCA KLAREN Assistant Criminal District Attorney State Bar Number 24046225 600 59th Street, Suite 1001 Galveston, Texas 77551 Tel (409)770-6004/Fax (409)621-7952 rebecca.klaren@co.galveston.tx.us
15
CERTIFICATE OF SERVICE
The undersigned Attorney for the State certifies a copy of the foregoing brief was
sent via email, eFile service, or certified mail, return receipt requested, to Kyle Verret,
attorney for Gary Lavern Wymore aka Calvin McCollum, at kyle@verretlaw.com or
2029 Strand Suite 3, Galveston, Tx 77550, on November 30, 2015.
/s/ Rebecca Klaren
REBECCA KLAREN Assistant Criminal District Attorney Galveston County, Texas
CERTIFICATE OF COMPLIANCE
The undersigned Attorney for the State certifies this brief is computer generated,
and consists of 2,436 words.
/s/ Rebecca Klaren
REBECCA KLAREN Assistant Criminal District Attorney Galveston County, Texas